Finton & Kimble

[2017] FCWA 106

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FINTON and KIMBLE [2017] FCWA 106

CORAM: WALTERS J

HEARD: 15 - 23 JUNE 2016

DELIVERED : 24 AUGUST 2017

FILE NO/S: PTW 2493 of 2014

BETWEEN: MR FINTON

Applicant

AND

MS KIMBLE
Respondent

Catchwords:

FAMILY LAW – PARENTING ISSUES – Where wife seeks husband have no contact with children – Where husband seeks equal shared parental responsibility and eventually shared care – Allegations of family violence – Husband's threatening and erratic behaviour throughout proceedings – Where husband mislead health professionals – Finding that contact between children and husband will adversely affect wife and her parenting ability – Held not in best interests of children to have contact with husband

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Mr J Hedges

Independent Children's Lawyer : Mr A Mackey

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Helen Turner Barrister and Solicitor

Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

A v A (1998) FLC 92-800

B & B (1993) FLC 92-357

Beach & Stemmler (1979) FLC 96-92

Champness & Hanson (2009) FLC 93-407

Chapman & Palmer (1978) FLC 90-510

Collu & Rinaldo [2010] FamCAFC 53

Fitzpatrick & Fitzpatrick (2005) FLC 93-227

Flanagan & Handcock [2000] FamCA 150

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Hamish & Brighton [2014] FamCAFC 242

Hungerford & Tank [2007] FamCA 637

Irvine & Irvine (1995) FLC 92-624

Jets & Maker (No 2) [2011] FMCAfam 1473

Jurchenko & Foster [2014] FamCAFC 127

K & K [2003] FamCA 1358

M & M (1988) FLC 91-979

M & S (2007) FLC 93-313

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

McLay & McLay (1996) FLC 92‑667

Mills & Watson (2008) 39 Fam LR 52

Moose & Moose (2008) FLC 93-375

MRR v GR (2010) 240 CLR 461

Mulvaney & Lane (2009) FLC 93-404

Re F – Litigants in Person Guidelines (2001) FLC 93-072

Re Andrew (1996) FLC 92-692

Re L, V, M & H (Children) (2000) EWCA Civ 194; [2000] 2 FLR 334

Re M (Contact Violent Parent) [1999] 2 FLR (UK) 321

Re W (Sex Abuse Standard of Proof) [2004] FamCA 768

Reynolds & Sherman [2015] FamCAFC 128

Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993)

Saxena & Saxena (2006) FLC 93-268

Sayer & Radcliffe (2012) 48 Fam LR 298

Sedgley & Sedgley & Cahill (1995) FLC 92-623

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker (2007) FLC 93-345

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1Before the Court are the competing applications of the parties for final orders in relation to their children.

Abbreviations and other terms used

2In these Reasons, and unless otherwise indicated:

a)all statements of fact comprise findings of fact;

b)I have referred to [Ms Kimble] and [Mr Finton] as "the wife" and "the husband" (and I mean them no disrespect by doing so) because it is less confusing than referring to them as the applicant and the respondent;

c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;

d)although the law now refers to children "spending time" with a person with whom they do not live, I have used the obsolete term "contact" from time to time – because it is both more convenient and less grammatically challenging to do so;

d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm"); and

e)I have referred to the Family Law Act 1975 (Cth) as the "FLA".

Background

3The parties entered into a relationship in early 2009 and married [in] 2011. They finally separated on 23 December 2013. The husband is 41 years old and ordinarily works in [IT]. The wife is 38 years old. In recent years, she has been occupied with the full-time care of the parties' children.

4There are two children of the marriage: [Child A], born [in] 2012 (aged 4) and [Child B], born [in] 2013 (aged 3). It is important to highlight the fact that these children were very young at the time of separation: Child A was 14 months old and Child B was just 3 months old. They were at an age where their relationship with their father was necessarily in the formative stage.

5In the three-and-a-half year period between separation and the final hearing, the children remained in the wife's primary care. They have had limited opportunity to develop and enhance their relationship with their father.

6The relationship between the parties has been described as one of significant conflict and domestic upheaval. Their separation was surrounded by allegations of violence, abuse and aggressive and erratic behaviour, levelled against the husband in particular. The wife asserts that she was concerned about the husband's conduct, and that she and the children could be at some risk from him. She says she was anxious about the thought of the children being alone with or cared for by the husband. Nevertheless, she did accommodate contact with the children by agreement with the husband in the early months after separation. It took the form of short periods during the day – bearing in mind the age and needs of Child B in particular.

7The wife became increasingly concerned about the husband's conduct and, in March 2014, she asked the husband to agree to have his time with the girls supervised. The husband declined.

8The husband filed his initiating application in May 2014. At this time, the husband was not seeing the children. On 16 June 2014, consent orders were made which provided for him to spend supervised time with the children for two hours on Thursdays and Saturdays.

9In the period following separation, the husband's life descended into turmoil and conflict. There is evidence of significant hostility, anger and threatening behaviour directed by the husband towards a wide range of people and institutions. His targets appeared to be the wife and anyone he thought was either supporting her or opposing him. Included among those in the husband's sights were the wife's mother and father, his own father, the wife's lawyer, the children's lawyer, his own lawyer, the Court and some of its judicial and non-judicial staff, Legal Aid WA and the single expert witness. Further, the level of conflict he generated in his own workplace resulted in him being temporarily stood down and referred for therapy.

10A key feature of the husband's recurring aberrant behaviour was his propensity to produce and send scathing, threatening and vitriolic communications. Even making due allowance for any understandable stress and distress experienced by the husband as a consequence of the breakdown of his relationship with the wife and his separation from his daughters, the husband's conduct was extreme. He appeared incapable of avoiding some quite appalling behaviour.

11By way of example only, I refer to the following:

a)Exhibit W5 comprises an email from the husband's father to the wife, attaching a copy of an email (dated 5 April 2016) from the husband to his father. In this email, the husband requests that his father leave his mother alone and stop sharing his opinion and case information with the children, the wife and others. He also requested that the father buy him a car. He refers to this as a "settlement attempt" and a "lifeline". In my opinion, it is threatening in nature:

If you do not intend taking responsibility or accountability for the abuse of myself, [the wife], and most importantly, my children, then I will bring the full force of the Family Court against you, for your sins.

…

Do not respond to each allegation. Do you use facetious language. Do not try emotional blackmail. Do the right thing or you will find yourself before the Family Court.

b)In an email dated 22 August 2015 sent to the independent children's lawyer, the wife's legal representative and the Court Email from the husband (which email is attached to the independent children's lawyer's affidavit sworn 24 August 2015), the husband said:

I have sent a camera crew to [1 Noel Place]. They will be filming your family and asking questions.

You want to bully me and my mother? Kill my dog????? Let's see who gets more reach. I will destroy your entire family reputation as you have mine. I will have them thrown back to the UK with their tail between their legs

Let's fight – the gloves came off as soon as you killed my dog. Now you are really going to see the worst in me.

c)In another email dated 22 August 2015 from the husband to the independent children's lawyer, the wife's legal representative and the Court (which email is attached to the independent children's lawyer's affidavit sworn 24 August 2015), the husband said:

Dear Chief Judge and Helen Turner

Here's an email for you.

If that child molester is in the courtroom again, and you open your mouth as the respondent before me, I will ask you to be quiet, I will ask the paedophile is escorted out – and I will announce it in front of the whole court room that he is a child molester.

Now file your form "without recourse" and try and seek costs. We'll see who wins that battle.

Oh and here is a picture of my dead dog your client killed.

If your client opens her mouth and has my mother attacked one more time, I will stop it personally. The magistrate may be scared of your constant rubbish that comes out of your mouth, but I'm not. And you WILL NOT bully my mother.

d)In an email dated 26 August 2015 from the husband to the independent children's lawyer (which email is attached to the independent children's lawyer's affidavit sworn 26 August 2015), the husband said:

Andrew,

I'm going to the SEW house. She's had long enough to respondent with an ETA. She is [Jackie's] pick for funding. Look at her CV. I've had 20 year olds apply for jobs with better CVs that that.

I'll get a response for you. Don't worry about that.

12The ICL became so concerned by the husband's behaviour that he filed an application for suspension of contact in August 2015. On 27 August 2015, Magistrate Calverley made orders to suspend supervised contact. To the best of the Court's knowledge, he has not seen the children since.

13The children continue to live with and be cared for by the wife.

Procedural History

14Proceedings for parenting orders were initiated by the husband in May 2014. The husband filed his amended Form 1 Application on 29 March 2016.

15The wife filed her amended response on 22 April 2016.

16An independent children's lawyer ("ICL") was appointed on 3 September 2014.

17On 31 October 2016, the wife was granted leave to reopen her case, and to file and rely upon an application for change of name (and her affidavit in support). The husband opposed the application.

18The final hearing in relation to the parties' competing applications commenced on 15 June 2016. It continued for a total of seven days (until 23 June). At that time, I reserved my decision. The matter was mentioned again in October 2016 and January 2017 to deal with supplementary matters.

Husband's Proposals

19The husband sought the following orders to the following effect:

a)equal shared parental responsibility;

b)the children live with the wife;

c)the children spend time with the husband, initially, on a short-term arrangement of limited and, if deemed necessary, supervised time – moving, at a later stage, to more extended, unsupervised time (including on special days and during school holidays); and

d)other specific orders relating to travel, communication, provision of information and where the children should reside.

Wife's proposals

20The wife sought the following orders to the following effect:

a)sole parental responsibility;

b)the children live with her;

c)the children not spend time with the husband; and

d)the issuing of passports for the children without the need for the husband's consent.

The propositions canvassed by the ICL

21The issues of particular focus for the ICL included the following:

a)What orders best serve the interests of the children in relation to parental responsibility and their living arrangements?

b)Is it in the children's best interests to spend time with the husband – or, put another way, is it in the children's best interests to be denied time with the husband?

c)In the context of the issues posed in (a) and (b) above, does the husband pose an unacceptable risk to the children?

22At the conclusion of the hearing, the ICL submitted that the orders which best meet the children's interests are to the following effect:

a) the wife have sole parental responsibility;

b) the children live with the wife;

c) the husband have no time with the children; and

d) the orders sought by the wife in relation to the issue of passports be granted.

The Law

23The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.

24Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Pt VII of the FLA.

25The Full Court carefully analysed the structure and effect of Pt VII in Goode & Goode (2006) FLC 93-286 ("Goode"). It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.

26Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child": s 64B(3). Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health.

27If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision: s 65DAC. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent: s 65DAE.

28As has long been the case, the child's best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

29The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are:

… to ensure that the best interests of children are met by:

•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.

30The principles underlying these objects are set out in s 60B(2). They are:

... that (except when it is or would be contrary to a child's best interests):

•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

•children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

•parents should agree about the future parenting of their children; and

•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

31Given that all the expressed objects of Pt VII are directed towards ensuring that a child's best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".

32The primary considerations are set out in s 60CC(2). They are:

•the benefit to the child of having a meaningful relationship with both of his or her parents; and

•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

33The additional considerations are set out in s 60CC(3). They include:

a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;

b)the nature of the child's relationship with each of his or her parents and other relevant people (including grandparents and other relatives);

c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;

d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child;

e)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);

f)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);

g)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);

h)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);

i)in the case of an Aboriginal or Torres Strait Islander child, the child's right to enjoy his or her indigenous culture;

j)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;

k)any relevant family violence, or family violence order;

l)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and

m)any other fact or circumstance that the court considers relevant.

34The long list of additional considerations makes it clear that the Court is required to focus on – among other things – each party's "track record" as a parent.

35Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FLC 93-407 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):

…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.

36In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents": see McCall & Clark (2009) FLC 93-405 at [119] ("McCall"). The Full Court described this as "the prospective approach". Depending upon the circumstances of the particular case, a slightly different approach (which the Court described as "the present relationship approach") may also be relevant. The present relationship approach suggests that a court should consider the benefit to a child of having a meaningful relationship with his/her parents by examining the nature of the relationship as it exists at the date of the hearing and proceeding to make orders which reflect its findings in that regard: see McCall at [117] to [122]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.

37Notwithstanding what was described in McCall as the "preferred" approach, the Court is not obliged to ensure that a child maintains a meaningful relationship with both parents; its obligation is to make orders most likely to promote the child's best interests. In seeking to discharge that broader obligation, the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) at [103]. As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:

… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.

38What then is a "meaningful relationship"? In broad terms, it is a relationship which is "important, significant and valuable to the child". In McCall at [121], the Full Court "accepted as appropriate" the following comment by Brown J in Mazorski & Albright (2007) 37 Fam LR 518 at [26]:

… [When] considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. …

39It should be borne in mind, as well, that "what the legislation aspires to promote is a meaningful relationship, not an optimal relationship": see Godfrey & Sanders [2007] FamCA 102 and Moose & Moose (2008) FLC 93-375 at [70].

40In Goode, the Full Court summarised the above process at [10]:

… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.

41Despite the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay & McLay (1996) FLC 92‑667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the Court may make such parenting order as it thinks proper: s 65D(1).

42The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.

43In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the Court that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].

44 When making a parenting order, the Court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility: s 61DA. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.

45Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the Court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is both of these things, then the Court must consider whether it should make an order to that effect: s 65DAA(1). If the Court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).

46In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...

Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)

47The same principles apply to s 65DAA(2) where its pre-conditions are satisfied: see, for example, Hamish & Brighton [2014] FamCAFC 242.

48The sequence in which the Court should consider the various provisions discussed above (and other relevant matters) is not clear from Pt VII itself. In Taylor & Barker (2007) FLC 93-345, however, the Full Court said at [62]:

… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.

49The Full Court in Taylor & Barker (supra) added that failure to follow the above approach, which it clearly regards as the logical approach, does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".

50In Mazorski & Albright (supra), Brown J dealt with the "additional considerations" (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose & Moose (supra), Boland J, with whom May J agreed, approved of such an approach, saying that, in certain cases, it may help to focus the Court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53 at [335].

51Having summarised the effect of Pt VII in Goode at [65], the Full Court then described, at [82], the "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why a similar pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S (2007) FLC 93-313 at [36]; see also Sayer & Radcliffe (2012) 48 Fam LR 298, citing Starr & Duggan [2009] FamCAFC 115.

52The relevant steps, as modified for a final hearing and taking into account the High Court's decision in MRR v GR (supra), are as follows:

a)Identify the parties' competing proposals.

b)Identify the issues in dispute in the proceedings.

c)Make relevant findings in relation to the facts.

d)Consider the relevant s 60CC factors and, if possible, make findings about them.

e)Decide whether the presumption in s 61DA applies.

f)If the s 61DA presumption applies, then consider whether it has been rebutted because its application would not be in the best interests of the child.

g)If the s 61DA presumption applies, and has not been rebutted, then consider both of the following questions:

i)Is it in the best interests of the child to spend equal time with each parent?

ii)Is it reasonably practicable for the child to spend equal time with each parent?

h)If both of the above questions are answered in the affirmative, then consider making an order for equal time (although the court is not obliged to make such an order).

i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider the two following questions:

i)Is it in the best interest of the child to spend substantial and significant time with the other parent?

ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?

j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent (but, again, the Court is not obliged to make such an order).

k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the Court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the default position under the FLA. Instead, the Court must concern itself with the reality of the situation of the parent and the child; it must make a practical assessment as to whether equal time, or, alternatively, substantial and significant time, is both feasible and in the child's best interests.

l)If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are 'at large and to be determined in accordance with the child's best interests' (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].

53Throughout the entire process, the Court must bear in mind that the child's best interests "remain the overriding consideration", and that those interests are to be "ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC": See Goode at [65.11] and [65.9].

54Notwithstanding the dicta discussed above, the question of an appropriate "legislative pathway" to provide guidance through the intricacies of Pt VII has continued to trouble judges at first instance. In Cox & Pedrana (2013) FLC 93-537, however, the Full Court said at [31]:

Whilst reference to a "legislative pathway" is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.

55I propose to take into account the relevant considerations to the degree they are relevant to the facts of this case.

The parties' reasons for their proposals

56On the surface, the husband's case was simple enough. He said he respected the wife's parenting capacity and had no intention of interfering with her role as the children's primary carer. He said he loved his daughters, he would never harm them, he had much to offer them and that he wanted to play a meaningful role in their lives and enjoy significant time with them.

57The wife was opposed to any ongoing contact between the children and their father. She said that the husband had been verbally and emotionally abusive during the relationship, that he became violent at the time of separation and that his behaviour since separation had become increasingly erratic and threatening. She said she feared for her safety, and for that of the girls. The wife suggested that she did not believe the husband was, in fact, motivated out of interest for the girls. In her view, the proceedings and the husband's conduct surrounding them were about his desire to win and control, and his wish to exact retribution. It was submitted on her behalf that she has been left damaged and extremely anxious as a consequence of the husband's behaviour and that the prospect of being required to facilitate the husband's ongoing relationship with the children could seriously undermine her emotional well-being and parenting capacity – to the substantial detriment of the children.

The focus of the case, the presentation, impressions and credibility of the parties

The focus of the case

58This was a long and difficult case, and the scope of the evidence before the Court is vast. As I will discuss shortly, the case concentrated on the husband: his past, his presentation, his personality, his conduct, his health, his aspirations and his prospects for the future. Those matters needed to be addressed, but it is important to record that, despite the trial's focus on (or, perhaps, fascination with) the husband, the proceedings always had far more to do with broader issues relating to the children's best interests.

59In the course of deliberating and producing a determination on the matters before the Court, it is appropriate to remind oneself about the nucleus of this matter. The Court's paramount consideration is the welfare or best interests of two very young girls. The history of this case and the legitimate concerns and aspirations of the parents are matters which must be taken into account – but it is the children's future, welfare and best interests upon which the Court must concentrate. The Court is responsible for determining what orders best meet their needs and advance their interests – including the need to be protected from the risk of harm.

60Given the necessary but unusual extent of the focus on the husband in this case – a focus which he might feel tends towards a form of preoccupation – I feel disposed to make a further observation. In spite of the glare of the spotlight being turned largely on the husband, the case is and has always been about the Court doing its best for the children. It certainly is not about punishing the husband for any bad behaviour. It is also not about rewarding him for any demonstrated change or contrition, or for gaining insight and empathy. There should clearly be no sense in which it might be understood that orders are to be made for these young children to have or not have contact with their father as some form of reward (on the one hand) or sanction (on the other). Put shortly, the Court has no interest in or enthusiasm for rewarding one party or punishing the other. Its preoccupation is with, and concentration is on, the best interests of the children.

The Wife

61The wife's capacity to parent the children, and their right to be cared for by her – and have a meaningful relationship with her – were never in dispute. Neither the husband nor the ICL opposed her claims for parental responsibility and to have the children live with her. The husband acknowledged on more than one occasion during the trial that she was a good mother, adding that he had no intention of offering any criticism of her (although, I note, he did criticise her at times).

62I am satisfied that the wife is a very capable mother, who has managed to provide good care for her daughters – often in most trying circumstances. She has remained focused upon their welfare and has always been conscious of the need to try to protect them from harm.

63I am also satisfied that she was a credible and reliable witness. In my opinion, her evidence should be given very significant weight.

64At the same time, it is necessary to observe that she has been greatly damaged by the relationship she endured with the husband, by the events surrounding separation and, particularly, by the husband's conduct in the three years between separation and the conclusion of the trial. From time to time she has presented as being extremely fragile and anxious, particularly when she is confronted by the need to deal with the husband and his behaviour. She has become hypervigilant, and deeply concerned about the ongoing involvement of the husband in her life and the lives of her children. I am satisfied, however, that those fears are genuine, and born of legitimate concerns for the children – and are neither feigned nor exaggerated.

65I will return to the wife's anxieties, and to their potential impact upon her parenting and the girls' welfare, later in these Reasons.

The Husband

The context of any evaluation

66As I have observed earlier, as the case progressed, the primary focus of the parties and the ICL related to issues surrounding the prospect of the children having an ongoing relationship with the husband.

67It is in the context of those questions that I must consider the evidence and the legal principles set out above.

68There is much about this case that is unusual. I have formed the view that the wife is a sensible, caring and responsible parent. I have no doubt that she can be relied upon to protect and promote the children's best interests. But as I have said, it was the husband – his character and personality, and his behaviour and attitudes – who seemed to dominate the trial process. To paraphrase counsel in a case that came before me some years ago:

Exhibit A in the case was the husband himself.

The husband was unrepresented

69The husband was not legally represented during the trial.

70I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:

a)procedural fairness was afforded to both parties;

b)the "mechanics" of the trial, and the right of parties to cross-examine witnesses, were explained to the husband;

c)other relevant procedures were explained to the husband as they arose;

d)I explained to the husband that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible;

e)where appropriate, I attempted to clarify the substance of the husband's submissions; and

f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.

71In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".

72In the present case, the husband participated in the process fully and (for the most part) graciously and with good humour. I have no doubt that – in spite of his occasional protestations – he fully understood "what was going on" at all times. In that regard, I am more than satisfied that he was not impeded unfairly or unduly in the presentation of his case. I have very consciously made allowance for the challenges confronting the husband as a self-represented litigant. At the same time, it remains incumbent upon me to take proper account of the evidence as it was presented, and to record my impressions of the parties in the context of the proceedings before the Court.

73The husband elected not to cross-examine the wife. This decision appeared to be based on his declarations about his respect for her – but it was taken in the face of clear warnings about its evidentiary implications. It follows that the husband has left much of the wife's case unchallenged. Still, I recognise (through his affidavit evidence and in his reporting to the professionals who have given evidence) that he has disputed many of the allegations brought against him.

74There were times when the husband saw fit to make concessions and admissions. Some of these were quite specific; others were broader. At other times, the husband was firm in his denials of any untoward conduct (particularly when under cross-examination) – although he later (when addressing the Court) appeared to concede some aspects of such behaviour. To add to the confusion, the husband conceded – on a number of occasions – that he deliberately lied, particularly when dealing with a wide range of health professionals. Indeed, [Dr M] (a psychiatrist) described him as a compulsive liar.

75At the end of the day, the most charitable description one could give to the presentation, testimony and conduct of the husband during the trial is to say that they were confusing and troubling. Put less charitably, the husband's presentation radiated unreliability, attempted manipulation and almost pathological dishonesty. Either way, I am unable to give weight to anything the husband said. Importantly, this observation also adheres to the husband's expressions of contrition and reassurance.

76Generally speaking, the husband presented as self-assured and somewhat pompous and egocentric. Although eloquent, he could be voluble and glib. In many ways, he gave the impression of being a slick, smooth-talking but impulsive charlatan, whose frequent geniality was superficial. When his shallowness and insincerity were exposed, he responded with obsequiousness and, as has been said of Charles Dickens' character, Uriah Heep, cloying humility. In short, and although the husband also demonstrated that he could be affable and sensitive – and even charmingly vulnerable at times – it would be folly to place reliance on his evidence where it conflicts with credible evidence presented by others. This is so notwithstanding the husband's expressions of regret, remorse or embarrassment for or in relation to aspects of his past behaviour.

The experts' assessments

77Bearing in mind the above observations, it is important to record that the husband has managed to create some fundamental difficulties for the Court and the experts involved in the matter. He admitted that he has seen fit (at times) to deliberately mislead the wide range of professionals involved in assessments for this case or his own treatment. His testimony included admissions that he has lied to, or misled by omission, his treating doctors, Dr M and [Dr R], his treating Clinical Psychologist, [Caitlyn Moore] and the Single Expert Witness, Dr Jacqueline Ryan. The husband was also oppositional or non-compliant in relation to a number of recommendations made by the experts which could or would have assisted in the evaluation and treatment processes.

78The husband's conduct in this regard not only reflects upon him poorly (and seriously undermines his credibility), but also makes it difficult for him to achieve the outcomes he seeks. The behaviour to which I have referred has left a very confused picture about vital issues relating to his health, conduct, insight and ability to be relied upon to comply with directions, recommendations and treatment in the future.

Clinical Psychologist, Caitlyn Moore

79[Ms Moore] ("CM") became involved with the husband in early 2016 following a request from the husband's employer– [who] was concerned about the husband's recurring conflict with a wide range of work colleagues. She treated the husband between February and May 2016. Her brief was to assist him with the aim of securing his return to the workplace.

80In her initial interview, she observed the husband to be extremely stressed, anxious, hyper-aroused and agitated. Her assessment – which was based on the husband's presentation and self-reporting – was that he suffered from an adjustment disorder with mixed disturbance of emotions and conduct, indicating the presence of depression and anxiety. She observed that, with such conditions, stress could cause the husband to "boil over into anger". CM reported that she regarded the husband as a poor historian in certain circumstances.

81CM ultimately observed some improvement in the husband's understanding of his issues, and she provided him with some strategies to better manage his impulsive behaviour. Her opinion was that, once his life stressors are removed and his interpersonal skills improve, the husband's prognosis for a complete recovery is good. CM later recommended that the husband return to work.

82When confronted with evidence of the husband's continuing impulsive behaviour during the course of her contact with him, CM conceded that the focus of her engagement was in relation to securing his return to work and that, in that sense, she was operating in something of a vacuum. She acknowledged that she was largely reliant upon the husband's self-reporting and had little knowledge of the issues outside those parameters (including the issues before the Court). She conceded that, in such circumstances, her earlier assessments should be treated with caution.

Psychiatrist, Dr Harold Ray

83[Dr Harold Ray] ("HR") was the husband's treating psychiatrist between September 2015 and the date of trial in June 2016. He saw the husband on some 11 occasions during that period, and provided reports in November 2015 and June 2016.

84In his first report, HR observed that his diagnosis at that time remained incomplete and uncertain. He identified in the husband a number of possible psychiatric conditions, including adjustment disorder with depressed and anxious mood. He added that the husband may also suffer from a major depressive illness, or perhaps bipolar affective disorder. HR observed that the husband had poor impulse and anger control.

85At that time, HR recommended a comprehensive treatment program – including medication, continued psychiatric management, therapy for his aggression and poor mood and impulse control. HR was also of the view that the husband should comply with any investigations requested of him.

86At the time of his June report, HR remained uncertain about the husband's diagnosis. He said that the husband needed to continue with both the biological and psychological treatment he had recommended. He also said that the husband needed to undertake regular drug testing.

87During HR's oral evidence, he suggested that there were signs that the husband had made some positive progress. His attention was then drawn to some of the events which had occurred while the husband was being treated by him. In particular, his attention was drawn to a number of emails sent by the husband after the date of HR's last consultation with him. Regrettably, the emails reinforced the other evidence regarding the husband's willingness and capacity to produce threatening and vitriolic correspondence. HR was clearly troubled by this information. In his opinion, the husband's conduct in this regard indicated a number of possibilities – including that the husband was not complying with his medication regime or was taking other substances. Alternatively, HR felt that there had been some deterioration or change in the husband's mental state after the last consultation. HR conceded that this type of information had the potential to undermine the validity of some of the positive aspects of his earlier assessment. Further, HR thought he would need to see the husband again to explore the cause or causes behind this apparent relapse.

88HR completed his oral testimony on 20 June and, overnight, the husband sent three emails to the ICL ("the June emails"): see exhibit ICL 12. Whilst aspects of the June emails remain less than clear, they appear to indicate that the husband did not provide the professionals with his full history. Indeed, they lead to the inescapable conclusion that the husband had continually lied about important features of his mental health history. The June emails also appear to question the husband's bona fides in relation to the proceedings themselves. Ultimately, and with the support of the husband, the matter was stood down with a view of having the emails referred to HR, and to have the husband consult with him again.

89HR was subsequently recalled. His further evidence was troubling. After speaking with the husband, HR felt that the further information he had obtained and the contents of the June emails were indicative of the husband suffering episodes of psychosis. HR speculated that such psychosis could be organic, or marijuana induced. Alternatively, he felt that such information could support a NOS (Not Otherwise Specified) form of psychosis. He also raised the prospect of the husband having some delusional disorder. None of these speculations were confirmed.

90HR said that the husband's presentation indicated that he would be likely to suffer from an impaired ability to make decisions or to choose a proper path. He added that the husband could experience difficulty making rational assessments. HR had earlier observed that the husband had failed to follow his recommendation for regular drug testing and, in fact, that he had not received one test result.

91It follows from the above that the evidence regarding the husband's mental health was less than clear at the end of the trial.

Clinical Psychologist, Dr Jacqueline Ryan

92Dr Ryan ("SEW") was appointed single expert witness in March 2015. She provided a table (comprising annexure C to her report) outlining the particulars of her involvement in the assessment process. That schedule discloses her extensive involvement in the matter. SEW interviewed the parties, in detail, in separate sessions. She also conducted home visits and observed the husband and the children together. In addition, SEW sought information from time to time, and reviewed extensive correspondence and reports.

93SEW produced her report on 31 August 2015. Its contents are credible, persuasive and troubling.

94The wife reported the history of abuse, threats and denigration she says she endured. She said that she believed the husband was motivated by the need to control and to win, and that his conduct towards her (and towards those whom he perceived as supporting her) was designed to meet his needs for vindication. The wife said she was afraid of the husband, and afraid of what he might do to her and the children.

95SEW had access to the husband's material and correspondence, and was aware of his history of erratic behaviour, threats, abuse and aggression. Indeed, SEW herself became the target of the husband's anger and threats. Among other things, he reported her to her professional body and, when he did so, he informed SEW:

It's either your career or my daughters. You lost.

96The husband also suggested that there was an occasion where he waited outside SEW's home for 6 hours.

97According to SEW, the husband's –

•sense of entitlement,

•disregard of professional boundaries,

•lack of respect of court process,

•lack of insight,

•lack of impulse control, and

•manipulative behaviour,

were very concerning. Indeed, SEW made it clear that, like the wife, she has found the husband's behaviour personally intimidating and unsettling. SEW's level of concern in that regard led her to seek legal protection from the husband.

98The information set out in SEW's report details many examples of the husband's erratic and threatening behaviour. It also describes the forms of conflict in which he appears to be perpetually involved. SEW suggested that the husband's behaviour was indicative of a deterioration in his mental health. She added that he lacks awareness of and insight into how his behaviour impacts negatively on other people.

99SEW said that, in her view, the wife's extreme fears and anxiety were justified, and that –

… the [husband's] behaviours stemming from his personality disturbance, mental health and/or brain dysfunction has and will continue to impact his parenting capacity.

100In the end, SEW concluded that, in her opinion, the wife and children were at risk of psychological abuse, ongoing harassment and potential serious violence. She assessed that risk as very high.

101SEW recommended that the husband's contact continue to be suspended until his mental health has been thoroughly assessed. In her report at [210], SEW suggested that the husband's personality and mental make-up are such that there is a prospect that he will not cease his preoccupations, and that the Court may have to consider making orders finalising the proceedings at that time. She recommended that there should be no resumption of contact between the husband and the children unless and until the husband is –

•reviewed by a neurologist;

•seen to be compliant with a psychiatric treatment regime for a sustained period;

•observed to have stopped his threatening behaviours;

•follows boundaries (and, in particular, stops emailing people without permission); and

•submits to regular drug testing and hair analysis.

102The husband had the report in his possession from September 2015. It follows that he was aware that SEW had recommended that contact with the children should remain suspended until all of her recommendations were satisfactorily addressed. He was also aware that a recommendation had been made that, should he fail to deal with the matters referred to in the previous paragraph, the Court should consider pronouncing orders finalising the proceedings prohibiting his contact with the girls.

103I have done no more than highlight some of the important matters contained in SEW's report. All aspects of it are less than elegantly phrased, I have read the entire report and give it (and the recommendations contained within it) significant weight. It is comprehensive, considered and persuasive. I recognise that SEW wrote it in very a challenging environment. I find that SEW showed considerable resolve, and that she has acted professionally and responsibly. I reject the husband's direct or indirect, and explicit or inferred, criticisms of SEW. They are without merit.

The observations of the husband with the children

104The husband has always asserted that he loves the children, and that he wants to spend time with them and play a meaningful role in their lives. He says that he misses them greatly and that his efforts to pursue his relationship with them through the court process has caused him a great deal of stress. Indeed, he seeks to explain away some of his less acceptable actions by attributing his behaviour to his anger at people who might appear to be interfering with his relationship with his children.

(14)The mother must serve a sealed copy of these orders upon the Registrar as soon as practicable.

Costs

(15) The wife have leave to apply for costs in the following manner:

(a)In the event that the wife proposes to seek costs from the husband, she must – within 28 days – file and serve a minute of orders sought as to costs, together with any written submissions that she wishes to make ("costs application").

(b)If –

(i)a costs application is made; and

(ii)husband wishes to oppose the costs application,

the husband must – within 28 days of service on him of the costs application – file and serve a minute of orders sought as to costs together with any written submissions that he wishes to make ("costs response").

(c)The written submissions forming part of the costs application and the costs response must not exceed a maximum of 10 pages in each case.

(d)In the event that either party seeks to make oral submissions with respect to costs, that party must – within 14 days of service of the costs response on the wife – write to the Court requesting that the matter be listed for a special appointment and setting out:

(i)the available dates for the parties to appear; and

(ii)the likely length of the special appointment.

(e)Prior to writing to the Court to request the said special appointment, the parties must confer with respect to availability and the likely length of the said special appointment.

(f)In the event that neither party seeks to make oral submissions with respect to costs, or in the event that the husband elects not to file a costs response, any costs application be thereafter determined on the papers.

(16) All extant applications otherwise be dismissed.

I certify that the preceding [211] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
24 August 2017